2. The applicants, who had been granted legal
aid, were represented by Mr M. A. Kırdök, Mr Ö. Kılıç and Mr H.K.
Elban, lawyers practising in Istanbul. The Turkish Government (“the
Government”) were represented by their Co-Agent, Dr Ş. Alpaslan.

3. The applicants complained of their forced eviction
from their homes in Boydaş, a village of Hozat district in Tunceli
province, and of the refusal of the Turkish authorities to allow them
to return. They alleged that their exclusion from their village gave
rise to breaches of Articles 1, 6, 7, 8, 13, 14 and 18 of the Convention
and Article 1 of Protocol No. 1.

4. The applications were allocated to the Third
Section of the Court (Rule 52 § 1 of the Rules of Court). Within that
Section, the Chamber that would consider the case (Article 27 § 1 of
the Convention) was constituted as provided in Rule 26 § 1.

5. On 28 November 2002 the Court decided to communicate
the applications. Under the provisions of Article 29 § 3 of the Convention,
it decided to examine the admissibility and the merits of the applications
at the same time.

6. The applicants and the Government each filed
observations on the admissibility and merits (Rule 59 § 1).

7. A hearing took place in public in the Human
Rights Building, Strasbourg, on 12 February 2004 (Rule 59 § 3).

Hasan Yıldız (application no. 8808/02) cultivated
the land owned by his father Nurettin Yıldız.

Hıdır and İhsan Balık are brothers (applications
nos. 8809/02 and 8810/02 respectively). They used the property owned
by their father Haydar Balık.

Mehmet Doğan is the son of Ali Rıza Doğan
(applications nos. 8813/02 and 8805/02 respectively).

Hüseyin Doğan (application no. 8818/02) cultivated
the land owned by his father Hasan Doğan.

11. Boydaş village may be described as an area
of dispersed hamlets and houses spread over mountainous terrain, where
there is insufficient land suitable for agriculture. For administrative
purposes the village was regarded as being in the Hozat district. An
extended patriarchal family system prevailed in the region, where there
were no large landowners but generally small family farms. These usually
took the form of livestock farms (sheep, goats and bee-keeping) revolving
around the grandfather or father and run by their married children.
The applicants earned their living by farming, in particular stockbreeding,
land cultivation, tree felling and the sale of timber, as did their
fellow villagers.

12. In 1994, terrorist activity was a major concern
in this area. Since the 1980s a violent conflict had been going on in
the region between the security forces and sections of the Kurdish population
in favour of Kurdish autonomy, in particular members of the PKK (Workers’ Party
of Kurdistan). This resulted in the displacement of many people
from in and around Boydaş village either because of the difficulty
of life in the remote mountainous area or because of the security situation.

13. The facts of the case, in particular the circumstances
of the applicants’ and the denial of access to their property in Boydaş
village, are disputed.

B. The applicants’ version of the facts

14. In October 1994 the inhabitants of Boydaş
were forcibly evicted from their village by security forces on account
of the disturbances in the region. The security forces also destroyed
the applicants’ houses with a view to forcing them to leave the village.
The applicants and their families thus moved to safer areas, namely
to Elazığ and Istanbul where they currently live in poor conditions.

1. The applicants’ complaints to the
authorities

15. Between 29 November 1994 and 15 August 2001
the applicants petitioned various administrative authorities, namely
the offices of the Prime Minister, the Governor of the state-of-emergency
region, the Tunceli Governor and the Hozat District Governor, complaining
about the forced evacuation of their village by the security forces.
They also requested permission to return to their village and to use
their property.

2. The authorities’ responses to the
applicants

16. Although the applicants’ petitions were
received by the authorities, no response was given to the applicants,
except the letters in reply sent to Abdullah, Ahmet, Mehmet and Hüseyin
Doğan, within the 60-day period prescribed by Law no. 2577.

17. By a letter of 5 May 2000, the District Governor
of Hozat replied to Abdullah Doğan’s petition dated 24 February 2000
and stated the following:

“The Project ‘Return to the Village and Rehabilitation
in Eastern and South-eastern Anatolia’ is developed by the South-eastern
Anatolia Project Regional Development Directorate (GAP Bölge Kalkındırma İdaresi Başkanlığı). It aims
to facilitate the re-settlement of any inhabitants who unwillingly left
their land due to various reasons, particularly terrorist incidents
and who now intend to return to secure collective settlement units,
since the number of terrorist incidents has decreased in the region.
The Project also aims at creating sustainable living standards in the
re-settlement areas.

In this context, your petition has been taken
into consideration.”

18. By letters of 10 October and 5 and 25 June
2001, the state-of-emergency office attached to the Tunceli Governor’s
office stated the following in response to the petitions submitted by
Ahmet, Mehmet and Hüseyin Doğan:

“Return to Boydaş village is forbidden for
security reasons. However, you can return and reside in Çaytaşı,
Karaca, Karaçavuş, Kavuktepe and Türktaner villages.

Furthermore, your petition will be considered
under the ‘Return to the Village and Rehabilitation Project’.”

C. The Government’s version of the facts

19. Since the early 1980s the PKK terrorist organization
waged a vicious and deadly campaign against the Turkish State with a
view to separating a part of its territory and setting up a Kurdish
State. The terrorist campaign carried out by the PKK focused on the
south-east provinces of Turkey and aimed at destabilizing the region
morally and economically as well as coercing the innocent population
in the area to join the terrorist organisation. Those who refused to
join the terrorist organisation were intimidated with random killings
and village massacres. In this connection, between 1984 and 1995, 852
incidents occurred causing the death of 383 people and the wounding
of 460.

20. This terrorist campaign resulted in a drastic
movement of population from the area to more secure cities and areas
of the country. Thus, the inhabitants of the villages and hamlets in
the region left their homes owing to the terrorist threat by the PKK.

21. However, a number of settlements might have
been evacuated by the local authorities to ensure the safety of the
population as a precaution. According to the official figures, the number
of people internally displaced on account of the terrorism is around
380,000. This figure corresponds to the evacuation of 48,822 houses
located in 853 villages and 2,183 hamlets.

22. The applicants were residents of Boydaş village.
The official records indicate that the inhabitants of Boydaş evacuated
the village because of the PKK intimidation. They were not forced to
leave the village by the security forces.

D. Documents submitted by the parties

1. The documents submitted by the applicants

(a) Statement of 4 December 2003 by Ali Haydar
Doğan, the mayor of Boydaş village

23. Mr Ali Haydar Doğan stated that he had been
the mayor of Boydaş village since 1989. He lived in the Hozat district
for three years following the forced evacuation of the village in October
1994. He is currently living in Istanbul. Mr Doğan explained that Boydaş
was a forest village with oak trees and pastures around it. Since the
village did not have sufficient land for agriculture, the inhabitants
earned their living mainly from stock breeding and tree-felling.

24. As to the property owned by the applicants
in Boydaş village, the mayor gave the following information:

(i) Abdullah Doğan had land, a house, a barn
and a sheep pen as well as approximately eighty head of small livestock
and cattle in the Kozluca hamlet of Boydaş village;

(ii) Cemal Doğan was cultivating a number of
plots of land registered in the name of his father. He owned a house,
a sheep pen, a barn and a number of animals;

(iii) Ali Rıza Doğan was using three plots
of land adding up to about 50 dönüm (about 920 m2) in the north and west of Kozluca hamlet.
He had small livestock and a number of animals;

(iv) Ahmet Doğan had a house, a sheep pen, a
barn and a plot of land of around thirty dönüm in Kozluca hamlet. He had around a hundred head of
small livestock and three or four cattle;

(v) Ali Murat Doğan was using, along with his
father, three plots of land adding up to about forty to fifty dönüm in the north of Kozluca. He also had a flock of small
livestock together with his father;

(vi) Hasan Yıldız was using some leased plots
of land. He further had, together with his father, a flock of two hundred
head of small livestock;

(vii) Hıdır Balık was cultivating a plot of
land, approximately two-hundred dönüm, owned by his father Kazım Balık, in the Dereköy
hamlet of Boydaş village. He also had about fifty head of small livestock
and two or three cattle;

(viii) İhsan Balık was cultivating a plot of
land, approximately two-hundred dönüm, along with his father Kazım. He and his father also
had a hundred and fifty head of small livestock and five cattle;

(ix) Kazım Balık and his siblings were cultivating
a plot of land, approximately two-hundred dönüm, which they had inherited from their father in the
hamlet of Dereköy. He had about a hundred and fifty head of small livestock
and five cattle;

(x) Mehmet Doğan was cultivating a plot of land
owned by his father Ali Rıza. He had a house, a barn, a sheep pen and
about forty head of small livestock in Kozluca hamlet;

(xi) Müslüm Yılmaz had a few plots of land
adding up to about fifty dönüm in total in the east of Boydaş village and approximately
two hundred head of small livestock as well as fifteen to twenty head
of cattle;

(xii) Hüseyin Doğan and his father Yusuf Doğan
were cultivating the land owned by the latter in Kozluca hamlet. Hüseyin
also had a separate house, a barn, a sheep pen and about eighty head
of small livestock as well as four cattle;

(xiii) Ali Rıza Doğan is the son of Yusuf Doğan,
and they were cultivating the land and feeding the animals mentioned
above (xii);

(xiv) Yusuf Doğan had a house, a barn and a
sheep pen in Kozluca hamlet. He also had three plots of land, adding
up to fifty dönüm, and about a hundred head of small livestock as well
as ten cattle;

(xv) Hüseyin Doğan is the son of Hasan Doğan.
He was cultivating three plots of land, around fifteen to twenty dönüm,
which he inherited from his grandfather and father in the Kozluca hamlet
of Boydaş village. He had seventy to eighty head of small livestock
and three to four cattle.

25. Following their visit to Boydaş village on
25 October 2003, the applicants observed the following:

“We are the villagers who lived in Boydaş
village of the Hozat district, but who had to leave since the village
was forcibly evacuated. We are currently residing in the Hozat district.
Although we were informed that we could return to our village, nobody
is living there at the moment because there are no buildings to live
in, no roads, no water, no electricity, no education or health service.”

(c) On-site report of 28 July 2003, drafted
and signed by three gendarmes and four villagers from Cevizlidere village
in the neighbouring Ovacık district

26. This document was prepared by three gendarmes
from the Ovacık gendarmerie command and undersigned by four villagers
from Cevizlidere in the Ovacık district, which is the neighbouring
town of Hozat. It contained the observations of the signatories on the
current state of Cevizlidere and referred to the fact that everyone
registered in the village was allowed to leave and enter the village
freely up to that date, provided that the gendarmerie station was informed
of those movements.

(d) Copy of an identity card issued by the
Ovacık District gendarmerie command

27. This identity card was issued by the Ovacık
district gendarmerie command for a resident of the Cevizlidere village.
It contains a statement that the identity card was issued for villagers
temporarily resident in Cevizlidere.

(e) Decision of lack of jurisdiction dated
29 September 1997, issued by the Military Public Prosecutor attached
to the Gendarmerie General Command in Ankara

28. This document pertains to the military public
prosecutor’s decision that he did not have jurisdiction in relation
to eight incidents which concerned the disappearance and killing of
certain individuals by unknown persons in the Hozat and Ovacık districts
of the province of Tunceli.

(f) Petition filed with the Prime Minister’s
office in Ankara by the mayors of some of the villages in the districts
of Hozat, Ovacık and Pertek, in the province of Tunceli

29. This petition contains the complaints of the
mayors about the burning of their villages and forced eviction of the
inhabitants by the security forces. The mayors further allege that security
forces apply an extensive embargo on foodstuffs and essential commodities
in the region. They ask the Prime Minister to take necessary measures
with a view to allowing the inhabitants of the villages to return to
their homes and land. They also request that the damage they suffered
as a result of the destruction of property and forced displacement be
compensated, that economic aid be provided and that the land mines in
the region be cleared.

(g) Ovacık First-instance Court’s decision
of 22 November 1994; Tunceli Deputy Governor’s letter of 22 November
1994; a letter of 18 October 1994 from İ.K. to the Ovacık First-instance
Court; Ovacık district gendarmerie command’s letter of 6 November
1994 to the District Governor; Tunceli Land Registry Director’s letter
of 25 October 1994 to the Ovacık First-instance Court and a letter
dated 18 October 1994 from the judge of the Ovacık First-instance Court
to the district governor’s office

30. The above-listed documents pertain to the
inability of the authorities to conduct an on-site investigation into
an allegation of destruction of property in Yazıören village in the
Ovacık district on account of the lack of security in the area in question.

(h) The report of 9 January 1996 of the Turkish
Grand National Assembly’s Commission of Inquiry on the measures to
be taken to address the problems of the persons displaced following
the evacuation of settlement units in east and south-east Anatolia

31. This report was prepared by a Commission of
Inquiry composed of ten members of parliament. According to the report,
in 1993 and 1994 the inhabitants of 905 villages and 2,523 hamlets were
evicted and forced to move to other regions of the country (p. 13).
The number of people evicted from 183 villages and 823 hamlets in the
province of Tunceli, which includes Boydaş village, was estimated to
be around 40,933 (p. 12).

32. The report includes the statements given by
Mr Rıza Ertaş, a member of the General Assembly of Van Province (Van İl Genel
Meclisi), who claimed that eighty per cent of the villages had
been evacuated by the State authorities and twenty per cent by terrorists
(p. 19).

33. The report also refers to the Human Rights
Report Turkey, which includes a chapter on evacuated villages and immigrants,
prepared and submitted to the Commission of Inquiry in 1995 by Mr Yavuz
Önen, the chair of the Human Rights Foundation. It appears from this
report that the mayors of the evacuated villages in the Ovacık and
Hozat districts of Tunceli met in Ankara on 20 and 21 May 1995. They
noted that 350 out of 540 villages and hamlets attached to Tunceli had
been evacuated and that fifty per cent of the evacuated villages had
been burned. The mayors further pointed out that the inhabitants of
the region faced starvation on account of the food embargo and that
the restrictions imposed by the authorities on access to the high ground
in the region had struck stock-breeding, which was the sole source of
income of the inhabitants of the region. It was further noted in the
Human Rights Report Turkey that in 1995 the practice of evacuation of
villages and hamlets had continued. Many houses in the villages were
either destroyed or made uninhabitable. People were forced to emigrate
from the region. Pressure was exerted on the inhabitants until they
left their villages. In early 1995 there was practically no village
or hamlet inhabited except those whose inhabitants agreed to become
village guards.

34. The report further refers to the speech delivered
at the Turkish Grand National Assembly by Mr Salih Yıldırım, a deputy
from Şırnak, on 3 June 1997 on the question of the evacuated villages.
Mr Yıldırım stated, among other assertions, that the villages were
evacuated either by the PKK, in order to intimidate those who opposed
it, or by the authorities since they were unable to protect the villages
or since the inhabitants of the villages refused to become village guards
or were suspected of having aided the PKK (p. 20).

35. In conclusion, it was recommended in the report
that the inhabitants of the settlement units should either be re-housed
in the provinces or districts or central villages, that those who wanted
to return should not be re-housed in hamlets but in central villages
which were close to the area where they used to live and that necessary
economic measures should be taken with a view to providing employment
to the inhabitants of the region while priority was being given to the
immigrants (p. 112).

(i) Committee of Ministers Interim Resolution
ResDH (2002)98 on action of the security forces in Turkey

36. The Committee of Ministers of the Council
of Europe stressed in Resolution Res DH (2002) 98, in so far as relevant,
that an effective remedy entailed, under Article 13 of the Convention,
a thorough and effective investigation into alleged abuses with a view
to the identification of and the punishment of those responsible, as
well as effective access by the complainant to the investigative procedure.
The Committee of Ministers also expressed its regrets that repeated
demands for the reform of Turkish criminal procedure to enable an independent
criminal investigation to be conducted without prior approval by the
State’s prefects had not yet been met. It therefore urged Turkey to
accelerate without delay the reform of its system of criminal prosecution
for abuses by members of the security forces, in particular by abolishing
all restrictions on the prosecutors’ competence to conduct criminal
investigations against State officials, by reforming the prosecutor’s
office and by establishing sufficiently deterrent minimum prison sentences
for persons found guilty of grave abuses such as torture and ill-treatment.

2. The documents submitted by the Government

(a) Letter of 22 July 2003 from the Ministry
of Interior Gendarmerie General Command to the Ministry for Foreign
Affairs

37. In response to the Ministry for Foreign Affairs’
letter of 19 June 2003 which contained a request for information as to
whether it was possible for the applicants to return to Boydaş village
in the Hozat district of Tunceli, Mr M. Kemal Gür, a gendarmerie senior
colonel, stated, on behalf of the Gendarmerie General Commander, that
there was no obstacle to the return of the citizens to their homes in
Boydaş village.

(b) 2 CD-ROMs containing aerial and land views
of Boydaş village

38. The following can be observed from the land
and aerial views of Boydaş village on 29 December 2003: The village
was located in steep terrain and was completely covered by snow. The
houses, which were spread over the mountainous area, seem to have been
constructed out of stones, wood, adobe and mud. The houses do not have
roofs. They seem to have collapsed due to hard winter conditions and
lack of maintenance. However, the public buildings, such as the school,
are intact since they seem to have been constructed of cement and stones.
Access to the village seemed to be impossible on account of the lack
of usable roads and the snow. Electricity and telephone supply posts
are still intact, though the wires need to be repaired.

(c) A copy of the minutes of the deliberations
in the Turkish Grand National Assembly concerning the “return to village
and rehabilitation project”

39. In response to a question concerning the content,
cost and the budget earmarked for 2000 of the return to village and
rehabilitation project, the then State Minister in charge of the General
Directorate for Village Services stated, inter alia, the following at the parliamentary session on 25 January 2000:

“The aim of the project is to resettle the
people who have either left or been evicted from villages, hamlets and
neighbourhoods in east or south-east Turkey. The project also aims at
reviving these settlement units by ensuring the return of their former
inhabitants. Seventy-six billion Turkish liras have been earmarked in
the budget for 1999 in respect of Bingöl. This fund can also be used
for 2000. The funds to be used in 2000 for the project have been earmarked
by the State Planning Organisation (Devlet Planlama Teşkilatı) and included in the budget of
the Ministry of the Interior. The project will be implemented by the
General Directorate for Village Services.”

40. At the parliamentary session of 29 June 2001,
Mr Rüştü Kazım Yücelen, the then Minister of the Interior, reported
on the return to village and rehabilitation project. He noted that the
project was being implemented in east-and south-east Anatolia and that
sufficient funds had been earmarked in the budget for eleven provinces
under the state-of-emergency rule. The Minister pointed out that the
governor of the state of emergency region, of his own motion, had been
supplying cement, iron and bricks to those who voluntarily sought to
return to their former settlement units. The Minister further noted
that 16,784 persons had returned to their homes in 118 villages and
95 hamlets. As regards the investments to be made to facilitate the
return of the villagers, he explained that priority had been given to
central villages which would provide services to sub-settlement units
in east and south-east Turkey.

41. At the parliamentary session of 1 November
2001 Mr Ahmet Nurettin Aydın, a deputy for the province of Siirt, submitted
that almost three million people had been forcibly displaced and that
their houses had been destroyed. He welcomed however the termination
by the authorities of the food embargo imposed on the inhabitants of
the region (east and south-east Turkey). He pointed out that the return
of the displaced persons to their homes would make an important contribution
to the improvement of the Turkish economy. In response to Mr Aydın’s
comments, the Minister of the Interior provided information on implementation
of the return to village and rehabilitation project.

42. On 27 November 2000, 12 March and 25 March
2001 and 4 November and 22 December 2003 parliament debated the issue
of displaced persons and implementation of the return to village and
rehabilitation project. At the parliamentary session on the latter date,
Mr Muharrem Doğan, a deputy for Mardin, stated that since the year 2000
permission had been issued by the authorities for the return of sixty
thousand people to their homes in the eleven provinces where emergency
rule was in force.

(d) Report on Tunceli, prepared by the Human
Rights Survey Commission of the Turkish Grand National Assembly, dated
17-20 January 2003

43. Following an on-site visit carried out by
members of the Commission, a report was issued on developments in Tunceli
province. The Commission noted, inter alia, that eighty houses had been built and given to
those in need of shelter in the Hozat district within the context of
the return to village and rehabilitation project. The Commission recommended
that implementation of the latter project be accelerated, that the villagers
be allowed to return and that economic aid be supplied to those who
wanted to return.

(e) A copy of the documents concerning meetings
held at the Secretariat General for European Union Affairs, attended
by representatives of the Government, the European Union and the United
Nations

44. Two meetings were held on 17 December 2003
and 12 January 2004 at the Secretariat General for European Union Affairs,
attended by representatives of the Government, the European Union and
the United Nations. The participants considered the situation of the
internally displaced persons and examined the return to village and
rehabilitation project. Following these meetings, a technical working
group was set up, which held three meetings to discuss various related
issues.

(f) An information note on the return to village
and rehabilitation project

45. This document, prepared in December 2003 by
the Presidency of the Research, Planning and Co-ordination Council attached
to the Ministry of the Interior, sets out the content of the project,
the work carried out within the context of this project, the principles
of the project and the investments made and aid provided in accordance
with the project. It appears from this document, in so far as relevant,
that according to the figures of October 2003 24,908 left Tunceli, 5,093
people submitted applications for return and 4,273 of them were allowed
to return by the authorities. The authorities provided monetary aid
and aid in kind with the sums of 16,852,800,000 Turkish liras (TRL)
and TRL 2,585,934,163,964 respectively for the province of Tunceli.

(g) Urgent implementation plan for the return
to village and rehabilitation project

46. This document, submitted by the South-East
Anatolia Development Directorate attached to the Prime Minister’s
office, contains information on the measures taken by the authorities
to resettle displaced persons in Diyarbakır, Şırnak, Batman, Siirt
and Mardin.

(h) Sub-project of regional development plan
for the return to village and rehabilitation project

47. This sub-project was prepared, by the South-East
Anatolia Development Directorate attached to the Prime Minister’s
office, to ensure the return of displaced persons to their former settlement
units within a short time, to better use economic resources and to avoid
any possible problems regarding the services to be provided to the inhabitants.
It describes the principles to be followed in the implementation of
the return to village and rehabilitation project.

(i) Information document on the funds allocated
within the context of the return to village and rehabilitation project

48. This document indicates that the provinces
of Diyarbakır, Şırnak, Batman, Mardin and Siirt received monetary
aid totalling TRL 10,687,063,000,000 (approximately 6,646,717.65 euros
(EUR)) between 2000 and 2003 within the context of the return to village
and rehabilitation project. It was noted that 2,269 billion Turkish
liras (EUR 1,410,926.48)were allocated for 2004
for the above-mentioned provinces.

(j) A copy of the decisions of the Malatya
Administrative Court and the Supreme Administrative Court

49. In a case brought by Mr Hasan Yavuz, who claimed
that he had abandoned his village due to the terror incidents, that
he had not been able to return to his village since 1994 on account
of the lack of security and that he had suffered damage on account of
not being able to use his property, the Malatya Administrative Court
awarded compensation (decision no. 2000/239, on file no. 1998/1226, 7
March 2000). Relying on the “social risk principle” the latter reasoned
that the damage sustained by the plaintiff must be compensated without
the establishment of a “causal link” and that it should be shared
by society as a whole since the administration had failed in its task
of preventing the terror incidents.

50. In an appeal case lodged with the Supreme
Administrative Court (decision no. 2000/5120, on file no. 1999/2162,
11 October 2000) against the judgment rendered by the Erzurum Administrative
Court, the appellant, Mr Ömer Akakuş, alleged that he had left his
village in the province of Ağrı on account of the terror incidents
and of the lack of security and that he had suffered damage because
he had not been able to use his property since 1993.

The Supreme Administrative Court acceded to the
plaintiff’s request and overruled the first-instance court’s judgment.
The former court noted that the plaintiff had left his village owing
to the terrorist incidents and not at the request or by the instructions
of the administration. On that account, it considered that, even if
the damage sustained by the plaintiff could not be ascribed to the administration
and though there was no “causal link”, the administration was liable
since it had failed to prevent terrorist incidents and maintain security.

(k) Application form for return to village

51. The Government submitted a copy of an application
form for return to village, filled in by the applicant Mr Kazım Balık.
This form contains information on the applicant’s identity and family
situation, his education level, the village he left, settlement unit
he wants to return to and a query as to whether he has suffered any
damage on account of the terrorism and if so, how.

In his application form filed with the Hozat
District Governor’s office, Mr Kazım Balık noted that he wanted
to return to Boydaş village and that he had left his village due to
the terrorism. He further noted that his house had been burned, that
his fields had been damaged and that he wanted to return on account
of economic difficulties. A similar form was also filled in by a certain
A.A.

(l) Documents pertaining to the aid supplied
to some of the applicants and their fellow townsmen

52. It appears from the records of the Social
Aid and Solidarity Fund that the applicants Mr Kazım Balık and Mr
Müslüm Yılmaz received monetary aid or aid in kind, such as food,
medicine and heating supplies, between 1994 and 2003. The aid received
by the applicants was TRL 646,913,300 and TRL 3,589,500 respectively.

Mr Ali Rıza Doğan had also requested aid, but
the authorities could not supply it since he was out of town.

It also transpires from other documents that
some of the villagers of the Hozat district were given beehives, sheep
or cows to provide a source of income.

(m) Birth registry records

53. These documents give detailed information
on the personal state of each of the applicants.

(n) Personal information form for the inhabitants
of Tunceli who filed an application with the European Court

54. The Government submitted documents entitled
“Personal information form for the inhabitants of Tunceli who filed
an application with the European Court” in respect of each of the
applicants. These documents contained detailed information on the personal
situation of the applicants, namely their father’s name, date of birth,
village, the amount they had declared for tax for the years 1994 and
1998 and the immovable property registered with their title.

E. Relevant international materials

1. Humanitarian situation of the displaced
Kurdish population in Turkey, Report of the Committee on Migration,
Refugees and Demography, adopted by Recommendation 1563 (2002) of the
Parliamentary Assembly

55. Between 8 and 12 October 2001 Mr John Connor,
the rapporteur of the Committee on Migration, Refugees and Demography,
established by the Parliamentary Assembly of the Council of Europe,
carried out a fact-finding visit to Turkey concerning the “humanitarian
situation of the displaced Kurdish population in Turkey”. Mr Connor
prepared a report based on the information gathered from a number of
sources, including his visit, official statements by the Turkish authorities
and information received from local and international non-governmental
organisations, as well as international governmental organisations.

56. In this report, Mr Connor drew attention to
the controversy concerning the figures for displaced persons. The Turkish
authorities’ official figure for “evacuated persons” amounts to
378,000 originating from 3,165 villages at the end of 1999, whereas
credible international estimates concerning the population displaced
as a result of the conflict in south-east Turkey range between 400,000
and 1 million by December 2000. As to the cause of the movement of the
population, the Turkish authorities maintained that the movement was
not caused by the violence in the region alone. They contended that
economic factors also accounted for the “migration”. The report,
recognising the situation of internal displacement due to the conflict
in the region, confirmed the Government’s stand point. However, it
pointed out that there was no doubt that there had been a major displacement
and migration to towns affecting those caught in the crossfire of the
conflict: on the one hand Turkish security forces had targeted villages
suspected of supporting the PKK. On the other hand the PKK had assassinated
inhabitants of the villages “collaborating” with the State authorities
(i.e. belonging to the village guards system) or refusing to support
the PKK. This vicious circle of violence had forced many people to flee
their homes.

57. Mr Connor pointed to the failure of the Turkish
Government to provide emergency assistance to people forcibly displaced
in the south-east, including persons displaced directly as a result
of the actions of the security forces. He further underlined the failure
of the Government to provide a sanitary environment, housing, health
care and employment to the internally displaced population.

58. As to the prospects for the future, Mr Connor
observed that the respondent Government had started developing return
and rehabilitation projects as early as 1994. However, the first returns
had occurred in 1997, as the region had not been secure before the latter
date. Despite obvious improvements, security remained the main concern
conditioning mass return movements. On the one hand, the authorities
felt reluctant to allow for a large influx of returnees fearing the
return of PKK militants. For that reason, they scrutinize every application
and did not authorize returns to certain areas. On the other hand, the
displaced population was in most cases unable to return without state
financial or subsistence assistance and sometimes reluctant because
of fresh memory of the atrocities committed in the past. Nevertheless,
the South Eastern Anatolia Project (GAP), which is a comprehensive development programme aimed
at the ending of the disparities between this region and the rest of
the country, financed a number of projects concerning the return and
resettlement of displaced persons. Among them was the “town-villages
project”, which, through the construction of centralised villages,
had allowed 4,000 displaced persons to return to their region. According
to the official figures, approximately 28,000 persons had returned to
200 villages up to July 2001. Even so, a number of human rights organisations
were critical of the Government’s efforts since the application forms
for those who wished to return included a question concerning the reason
for leaving the village. According to these organisations, displaced
persons were not allowed to return unless they gave the actions of the
PKK as a reason. Furthermore, there had been allegations that return
was authorised only to the villages within the village guard system.

59. Mr Connor concluded with satisfaction that
the humanitarian situation in the region had progressed in relation
to the situation presented in the last report of the Committee on Migration,
Refugees and Demography; although the aims of provision of full security
for mass returns and taking measures for revitalisation of the economy
were still to be achieved. He made recommendations to the Turkish Government
concerning a number of issues, which constituted the basis for Recommendation
1563 (2002) of the Parliamentary Assembly of the Council of Europe.

2. Recommendation 1563 (2002) of the Parliamentary
Assembly on the humanitarian situation of the displaced Kurdish population
in Turkey

60. On 29 May 2002 the Parliamentary Assembly
of the Council of Europe adopted Recommendation 1563 (2002) on the “humanitarian
situation of the displaced Kurdish population in Turkey”. The Parliamentary
Assembly urged Turkey to take the following steps:

“a. lift the state of emergency in the four
remaining provinces as quickly as possible, namely in Hakkari and Tunceli,
Diyarbakır and Şırnak;

b. refrain from any
further evacuations of villages;

c. ensure civilian
control over military activity in the region and make security forces
more accountable for their actions;

d. step up investigations
into alleged human rights violations in the region;

e. properly implement
the rulings of the European Court of Human Rights;

f. abolish the village
guard system;

g. continue its efforts
to promote both the economic and social development and the reconstruction
of the south-eastern provinces;

h. involve representatives
of the displaced population in the preparation of return programmes
and projects;

i. speed up the process
of returns;

j. allow for individual
returns without prior permission;

k. not to precondition
assistance to displaced persons with the obligation to enter the village
guard system or the declaration on the cause of their flight;

l. present reconstruction
projects to be financed by the Council of Europe’s Development Bank
in the framework of return programmes;

m. adopt measures
to integrate those displaced persons who wish to settle in other parts
of Turkey and provide them with compensation for damaged property;

n. grant full access
to the region for international humanitarian organisations, and provide
them with support from local authorities.”

3. Report of the Representative of the
Secretary-General on internally displaced persons, Mr Francis Deng,
the United Nations Economic and Social Council, Commission on Human
Rights, 59th session, 27 November 2002

61. Between 27 and 31 May 2002 the Representative
of the Secretary-General of the United Nations on internally displaced
persons, Mr Francis Deng, undertook a visit to Turkey, at the invitation
of the Government of Turkey. He aimed to gain a first-hand understanding
of the situation of the displaced and to engage in a dialogue with the
Government, international agencies, non-governmental organisations and
representatives of the donor countries. Following his visit the Representative
prepared a report which was submitted to the Commission on Human Rights
of the United Nations.

62. Mr Deng reported that the figures concerning
the displaced population ranged widely between 378,000 and 4,5 million
persons, predominantly of ethnic Kurds. Regarding the cause of the displacement
in Turkey, the Representative contended that the situation of displacement
had mainly resulted from armed clashes, violence and human rights violations
in south-east Turkey. Like the rapporteur of the Council of Europe,
he recognised the Government’s claim that economic factors also accounted
for the population movements.

63. Mr Deng stated that the majority of the displaced
persons had moved into provincial cities, where they had reportedly
lived in conditions of extreme poverty, with inadequate heating, sanitation,
infrastructure, housing and education. He noted that the displaced persons
had to seek employment in overcrowded cities and towns, where unemployment
levels were described as “disastrous”. Mr Deng observed that the
Government officials were mainly concerned with explaining the initiatives
that the authorities were taking regarding the return and resettlement
of the displaced population. He further observed that there was a tendency
not to refer to the current conditions of the displaced. He noted that
the problems of the displaced were not specific to the displaced, but
affected the population of south-east Turkey as a whole.

64. Regarding the return and resettlement initiatives,
Mr Deng primarily reported the “Return to Village and Rehabilitation
Project”, which was announced by the Turkish Government in 1999. Citing
the positive aspects of the project, such as the feasibility study conducted
prior to the development of the project and the voluntary nature of
any return and resettlement, Mr Deng expressed his concerns on a number
of issues. He noted that the extent of the consultation with the displaced
and the non-governmental organisations working on their behalf might
be insufficient. He further reported the concerns regarding the plan
of a new centralised settlement pattern, as opposed to the traditional
pattern of one large settlement (village) surrounded by smaller settlements
(hamlets). Mr Deng noted that, although establishing security in the
region through promoting centralised settlement units was a legitimate
policy, the authorities should consult the displaced themselves. Two
other issues that were of concern for Mr Deng were the absence of basic
data which would give an accurate picture of the displacement and the
failure to implement the project.

65. As to return and resettlement initiatives
other than the “Return to Village and Rehabilitation Project”, Mr
Deng noted that there had not been sufficient information as to their
target groups and how exactly they related to one another.

66. Concerning the obstacles to return, Mr Deng
referred to the practice of requiring persons to declare that they would
not seek damages from the State. Mr Deng noted that Government officials
denied the existence of a non-litigation clause in the application forms
for those who wished to return. Furthermore, he had received information
concerning the application forms, which included a question concerning
the reason for leaving the village. According to the reports, only those
persons who stated that they had been displaced as a result of “terror”
were allowed to return. Mr Deng further noted that there had been allegations
that return was authorised only to villages within the village guard
system. He finally noted that anti-personnel mines posed a threat to
those who wished to return to their villages in south-east Turkey.

67. The recommendations of the Representative
of the Secretary-General of the United Nations on internally displaced
persons were summarised as follows:

“a. The Government
should clarify its policy on internal displacement, including return,
resettlement and reintegration, make its policy widely known, create
focal points of responsibility for the displaced at various levels of
the government structures, and facilitate co-ordination and co-operation
among government institutions and with non-governmental organisations,
civil society and the international community.

b. The Government
should enhance their efforts to address the current conditions of the
displaced, which are reported to be poor, in co-operation with non-governmental
organisations and United Nations agencies.

c. The Government
should provide more comprehensive and reliable data on the number of
persons displaced as a result of the actions of both the Kurdistan Workers’
Party (PKK) and the security forces, on their current whereabouts, conditions
and specific needs, and on their intentions with respect to return or
resettlement.

d. The Government
should facilitate broad consultation with the displaced and the non-governmental
organisations and civil society organisations working with them. The
Government should further consider producing a document that clearly
outlines the objectives, scope and resource implications of the Return
to Village and Rehabilitation Project. Finally the results of the feasibility
study conducted should be made public and the Government should facilitate
an open discussion with the displaced and non-governmental organisations
on the findings of this study and the steps which should be taken to
implement them.

e. The Government
should examine areas of possible co-operation with the international
community. In this connection, the Government might consider convening
a meeting with international agencies, including the World Bank, and
representatives of the potential partners to explore ways in which the
international community could assist the Government in responding to
the needs of the displaced.

f. The Government
should ensure a non-discriminatory approach to return by investigating
and preventing situations in which former village guards are allegedly
given preference in the return process over those persons perceived
as linked to PKK.

g. The Government
should ensure that the role of the security forces, or jandarma, in the return process is primarily one of consultation
on security matters. Displaced persons who have been granted permission
by the authorities to return to their villages - the decision being based
on the advice of the jandarma - should be allowed to do so without unjustified
or unlawful interference by the jandarma.

h. The Government
should take steps to abolish the village guard system and find alternative
employment opportunities for existing guards. Until such time as the
system is abolished, the process of disarming village guards should
be expedited.

i. The Government
should undertake mine clearance activities in the relevant areas of
the south-east to which displaced persons are returning, so as to facilitate
that process.

j. The Government
should enhance their efforts to develop legislation providing compensation
to those affected by the violence in the south-east, including those
who were evacuated from their homes by the security forces.”

II. RELEVANT DOMESTIC LAW AND PRACTICE

A. Constitution

68. Article 125 of the Constitution provides:

“All acts or decisions of the administration
are subject to judicial review ...

The administration shall be liable to indemnify
any damage caused by its own acts and measures.”

69. The above provision is not subject to any
restrictions even in a state of emergency or war. The latter requirement
of the provision does not necessarily require proof of the existence
of any fault on the part of the administration, whose responsibility
is of an absolute, objective nature, based on the concept of collective
liability and referred to as the theory of “social risk”. Thus,
the administration may indemnify people who have suffered damage from
acts committed by unknown or terrorist authors when the State may be
said to have failed in its duty to maintain public order and safety,
or in its duty to safeguard individual life and property.

70. The principle of administrative liability
is reflected in the additional section 1 of Law no. 2935 of 25 October
1983 on the State of Emergency, which provides:

“... actions for compensation in relation to
the exercise of the powers conferred by this Law shall be brought against
the administration before the administrative courts.

B. Criminal responsibility

71. The Criminal Code makes it a criminal offence

(a) to deprive an individual unlawfully of his
or her liberty (Article 179 generally, Article 181 in respect of civil
servants);

(b) to oblige an individual through force or
threats to commit or not to commit an act (Article 188);

(c) to issue threats (Article 191);

(d) to make an unlawful search of an individual’s
home (Articles 193 and 194);

(f) to set fires unintentionally by carelessness,
negligence or inexperience (Article 383); or

(g) to damage another’s property intentionally
(Article 526).

72. For all these offences complaints may be lodged,
pursuant to Articles 151 and 153 of the Code of Criminal Procedure,
with the public prosecutor or the local administrative authorities.
The public prosecutor and the police have a duty to investigate crimes
reported to them, the former deciding whether a prosecution should be
initiated, pursuant to Article 148 of the Code of Criminal Procedure.
A complainant may appeal against the decision of the public prosecutor
not to institute criminal proceedings.

73. If the suspected authors of the contested
acts are military personnel, they may also be prosecuted for causing
extensive damage, endangering human lives or damaging property, if they
have not followed orders in conformity with Articles 86 and 87 of the
Military Code. Proceedings in these circumstances may be initiated by
the injured persons (non-military) before the competent authority under
the Code of Criminal Procedure, or before the suspected persons’ hierarchical
superior (sections 93 and 95 of Law no. 353 on the Constitution and Procedure
of Military Courts).

74. If the alleged perpetrator of a crime is an
agent of the State, permission to prosecute must be obtained from local
administrative councils (the Executive Committee of the Provincial Assembly).
An appeal against the local council’s decisions lies to the Supreme
Administrative Court; a refusal to prosecute is subject to an automatic
appeal of this kind.

C. Provisions on compensation and administrative
procedure

75. Any illegal act by civil servants, be it a
crime or a tort, which causes pecuniary or non-pecuniary damage may
be the subject of a claim for compensation before the ordinary civil
courts.

76. Under Article 13 of the Code of Administrative
Judicial Procedure (Law No. 2577 of 6 January 1982) those who have suffered
damage on account of a wrongful act of the administration may bring
compensation proceedings against the latter within a year from the date
on which they learned of the impugned act and, in any event, within
five years from the commission of that act. The proceedings before the
administrative courts are in writing.

77. Damage caused by terrorist violence may also
be compensated out of the Aid and Social Solidarity Fund.

78. Persons who have sustained damage as a result
of an administrative act may file an application with the superior authority
of the relevant administration and request the annulment, withdrawal
or alteration of the impugned act (Article 11 of the Code of Administrative
Procedure). The administrative authorities’ failure to reply within
sixty days is considered to be a tacit refusal of that request (Article
10 of the Code on Administrative Procedure). The persons concerned may
then bring an action before the administrative courts requesting the
annulment of the administrative act and compensation for their damage
(Article 12 of the Code of Administrative Procedure).

D. The state of emergency region

79. The governor’s office of the state of emergency
region was set up with special powers after the state of martial law
was officially declared to be over on 19 July 1987 by a legislative
decree (no. 285 of 10 July 1987). A state of emergency was thus decreed
in the provinces of Bingöl, Diyarbakır, Elazığ, Hakkari, Mardin,
Siirt, Tunceli and Van. On 19 March 1994 the state of emergency was extended
to the province of Bitlis, but lifted in the province of Elazığ. It
was declared to be over in the provinces of Batman, Bingöl and Bitlis
on 2 October 1997, in the province of Van on 30 July 2000, in the provinces
of Tunceli and Hakkari on 1 August 2002 and in the provinces of Diyarbakır
and Şırnak on 30 November 2002.

80. In accordance with section 13 of Law no. 2935
on the State of Emergency (25 October 1983), state of emergency councils
and offices were set up within the emergency region with a view to monitoring
incidents, implementing and assessing measures taken by the authorities
and making proposals in this regard. Should the governor of the state
of emergency region consider it necessary, or in provinces where a state
of emergency has been decreed, state of emergency offices are to be
set up in the provinces and the districts. The state of emergency offices
are to be presided over by the governors or their deputies in the provinces
and by the district governors in the districts.

Under section 14 of Law no. 2935, the governor
of the state of emergency region may delegate part or all of the duties
and powers conferred on him to the governors of the provinces in the
state of emergency region.

1. The powers of the governor of the state
of emergency region

81. Extensive powers have been granted to the
governor of the state of emergency region (Olağanüstü Hal Bölge Valisi) by decrees enacted under Law
no. 2935 on the State of Emergency, especially Decree no. 285, as amended
by Decrees nos. 424 and 425, and Decree no. 430.

82. According to Article 4 (h) of Decree no. 285,
the governor of the state of emergency region can order the permanent
or temporary evacuation of villages. Under Article 1 (b) of Decree no.
430 of 16 December 1990, he can also impose residence restrictions and
enforce the transfer of people to other areas.

2. Judicial scrutiny of legislative decrees
on the state of emergency and of measures taken by the governor of the
state of emergency region

(a) Constitutional review of legislative decrees
on the state of emergency region

83. The relevant part of Article 148 § 1 of the
Constitution provides:

“... There shall be no right of appeal to the
Constitutional Court to contest the form or substance of legislative
decrees issued during a state of emergency, a state of siege or in wartime.”

(b) Judicial scrutiny of measures taken by
the governor of the state of emergency region and prosecution of members
of the security forces

84. Article 7 of Legislative Decree no. 285, as
amended by Legislative Decree no. 425 of 9 May 1990, precludes any application
in the administrative courts to have an administrative act performed
pursuant to Legislative Decree no. 285 set aside.

85. Article 8 of Decree no. 430 provides:

“No criminal, financial or legal responsibility
may be claimed against the state of emergency regional governor or a
provincial governor within a state of emergency region in respect of
their decisions or acts connected with the exercise of the powers entrusted
to them by this decree, and no application shall be made to any judicial
authority to this end. This is without prejudice to the rights of individuals
to claim indemnity from the State for damage suffered by them without
justification.”

86. The public prosecutor does not have jurisdiction
with regard to offences alleged against members of the security forces
in the state of emergency region. Article 4 § 1 of Decree no. 285 provides
that all security forces under the command of the regional governor
are subject, in respect of acts performed in the course of their duties,
to the Law of 1914 on the prosecution of civil servants. Thus, any prosecutor
who receives a complaint alleging a criminal act by a member of the
security forces must decline jurisdiction and transfer the file to the
Administrative Council. These councils are composed of civil servants,
chaired by the governor. A decision by the Council not to prosecute
is subject to an automatic appeal to the Supreme Administrative Court.
Once a decision to prosecute has been taken, it is for the public prosecutor
to investigate the case.

(c) The case-law of the Constitutional Court

87. The Constitutional Court has reviewed the
constitutionality of Article 7 of Legislative Decree no. 285, as amended
by Legislative Decree no. 425 of 9 May 1990, in a judgment of 10 January
1991, which was published in the Official Gazette on 5 March 1992. It
stated:

“It is not possible to reconcile that provision
[which precludes any judicial scrutiny of acts performed by the governor
of the state of emergency region] with the concept of the rule of law...
The system of government when a state of emergency has been declared
is not an arbitrary one that escapes all judicial scrutiny. There can
be no doubt that individual and regulatory acts performed by the competent
authorities while the state of emergency continues must be subject to
judicial review. Contravention of this principle is inconceivable in
countries run by democratic regimes and founded on freedom. However,
the impugned provision is contained in a legislative decree that cannot
be the subject of constitutional review... Consequently, the application
for an order quashing that provision must be dismissed as being incompatible ratione materiae
(yetkisizlik)...”

88. As regards Article 8 of Legislative Decree
no. 430, in two judgments delivered on 3 July 1991 and 26 May 1992 (published
in the Official Gazette on 8 March 1992 and 18 December 1993 respectively),
the Constitutional Court followed that decision in dismissing as incompatible ratione materiae
applications for orders quashing the relevant provisions.

However, by a judgment of 22 May 2003, the Constitutional
Court reversed its previous case-law and annulled Article 7 of Decree
No. 285 as being unconstitutional.

THE LAW

I. ADMISSIBILITY

89. The applicants complained of their forced
eviction from their village by the security forces and of the refusal
of the authorities to allow them to return to their homes and land.
They invoked Articles 1, 6, 7, 8 13, 14 and 18 of the Convention and
Article 1 of Protocol No. 1.

A. The Government’s preliminary objections

90. By way of a “preliminary observation”
the Government questioned the victim status of nine of the applicants
who had failed to present title deeds proving that they owned property
in Boydaş village. Furthermore, they raised a preliminary objection
to the Court’s jurisdiction, arguing that the applicants had failed
to exhaust domestic remedies and to comply with the six months’ rule
as required by Article 35 § 1 of the Convention.

1. The alleged lack of victim status of
nine of the applicants

91. The Government submitted that the applicants
Abdullah Doğan, Cemal Doğan, Ali Murat Doğan, Hıdır Balık, İhsan
Balık, Kazım Balık, Mehmet Doğan, Hüseyin Doğan and Ali Rıza
Doğan (applications nos. 8803, 8804, 8807, 8809, 8810, 8811, 8813, 8816
and 8819/02 respectively) did not have victim status in respect of their
complaints under Article 1 of Protocol No. 1 since they had failed to
prove that they had owned property in Boydaş village.

92. The applicants contested the Government’s
submissions, arguing that they were victims because they had lived and
earned their living in Boydaş village until their forced eviction in
October 1994.

93. The Court reiterates that the word “victim”,
in the context of Article 34, denotes the person directly affected by
the act or omission which is in issue (see, mutatis mutandis, Groppera Radio AG and Others v. Switzerland, judgment of 28
March 1990, Series A no. 173, p. 20, § 47). However, it considers that
the Government’s preliminary objection under this head raises issues
that are closely linked to those raised by the applicants’ complaints
under Article 1 of Protocol No. 1, namely the determination of the existence
of the applicants’ possessions and the alleged interference with the
enjoyment of their possessions. Consequently, the Court joins the preliminary
objection concerning the victim status of the above-mentioned nine applicants
to the merits.

2. The alleged failure to exhaust domestic
remedies

94. The Government maintained that the applicants
had not exhausted the domestic remedies afforded by Turkish law. They
noted that there existed administrative, criminal and civil law remedies
capable of affording redress in respect of the applicants’ complaints
and leading to the grant of compensation.

95. The Government contended that it would have
been possible for the applicants to seek redress before the administrative
courts using the procedure under Law no. 2577 (see paragraphs 75-78
above). They pointed out in this connection that the applicants could
have applied to the competent administrative court following the refusal
of the local authorities to allow them to return to their village and
could have requested the administrative court to set aside the authorities’
decision. They could also have claimed compensation for their damage
before the same court. The Government further stressed that in the instant
case the applicants’ request to have access to their property in Boydaş
village had been refused by the local authorities, namely the Hozat
district governor and the Tunceli governor, and not by the governor
of the state of emergency. With reference to numerous decided cases,
the Government demonstrated that the administrative courts had awarded
compensation in similar cases involving the plaintiffs’ inability
to have access to their property on account of the lack of security
in the region (see paragraphs 49 and 50 above). In these cases, the
administrative courts referred to the doctrine of “social risk”,
which did not require the establishment of any causal link between the
harmful action and the loss, and reasoned that the damage caused by
the terrorism should be shared by the society as a whole in accordance
with the principles of “justice” and “social state”.

96. The Government further pointed out that, if
committed, the alleged acts complained of by the applicants before the
Court would indeed have been punishable under Turkish criminal law (see
paragraphs 71-74 above). In this connection the applicants could have
lodged criminal complaints with the Chief Public Prosecutor’s office
pursuant to Articles 151, 152 and 153 of the Code of Criminal Procedure.

97. The Government submitted in the alternative
that the applicants could have also lodged a civil action with the Magistrates’
Court in civil matters (sulh hukuk mahkemesi) for determination of their damage and,
subsequently, for redress for damage sustained through illegal acts.

98. The applicants maintained that the administrative,
criminal and civil remedies referred to by the Government were ineffective
and did not provide any prospect of success for the following reasons.

99. The applicants submitted in the first place
that actions to set aside an administrative decision and to claim compensation
from the State were not an effective remedy where the state of emergency
region was concerned. They noted in this connection that Article 7 of
Legislative Decree no. 285 precluded any application in the administrative
courts to have an administrative act performed pursuant to Decree no.
285 set aside (see paragraph 84 above). Thus, any purported action to
set aside the emergency region authorities’ decision to restrict access
to the villages was doomed to failure. Furthermore, to date no administrative
application or administrative case brought on the grounds of the liability
of the security forces had had any chance of success.

100. The applicants further contended that the
criminal law was not imposed against the security forces and that in
their case the authorities had failed to enforce the Criminal Code.
With reference to the Court’s findings in the case of Akdivar and Others v. Turkey (judgment of 16 September 1996, Reports of Judgments
and Decisions 1996-IV, p. 1204, § 41) the applicants alleged
that when a criminal complaint was made against agents of the State,
the law on the prosecution of civil servants was applicable. This procedure
reinforced the unaccountability of security forces in the state of emergency
region of Turkey since it lacked independence or credibility. Referring
to a resolution of the Committee of Ministers of the Council of Europe,
namely Res DH (2002) 98, the applicants alleged that at the dates on
which they applied to the authorities the legal situation in the region
had remained unchanged (see paragraph 36 above).

101. As regards the civil law remedies, the applicants
submitted that there was no prospect of success in a civil law suit
for damages against the State unless there had been a finding by a criminal
court that an offence had occurred. Such a criminal verdict presupposed
that there had been an investigation followed by a prosecution. However,
there was no investigation into the impugned events. The applicants
also claimed that at the relevant time the prosecuting authorities were
unable to conduct any investigation into allegations of destruction
of property and evacuation of villages due to the lack of security in
the region (see paragraph 30 above). In the light of the above, the
applicants requested the Court to reject the Government’s plea of
non-exhaustion.

102. The Court reiterates that the rule of exhaustion
of domestic remedies referred to in Article 35 § 1 of the Convention
requires applicants first to use the remedies provided by the national
legal system, thus dispensing States from answering before the European
Court for their acts before they have had an opportunity to put matters
right through their own legal system. The rule is based on the assumption
that the domestic system provides an effective remedy in respect of
the alleged breach. The burden of proof is on the Government claiming
non-exhaustion to satisfy the Court that an effective remedy was available
in theory and in practice at the relevant time; that is to say, that
the remedy was accessible, was capable of providing redress in respect
of the applicant’s complaints and offered reasonable prospects of
success. However, once this burden of proof has been satisfied, it falls
to the applicant to establish that the remedy advanced by the Government
was in fact exhausted or was for some reason inadequate and ineffective
in the particular circumstances of the case or that there existed special
circumstances absolving him or her from the requirement (see Akdivar and Others, cited above, §§ 65-69, and Menteş and Others v.Turkey, judgment of 28 November 1997, Reports 1997-VIII, p. 2706, § 57).

103. The Court notes that Turkish law provides
administrative, civil and criminal remedies against illegal acts attributable
to the State or its agents.

104. However, with regard to an action in administrative
courts under Law no. 2577, the Court observes that Turkish law did not
provide at the relevant time any remedy to set aside a decision or a
measure taken by the governor of the state of emergency region (see
paragraphs 81-86 above and, Çetin and Others v. Turkey, nos. 40153/98 and 40160/98, §
38, 13 February 2003). Furthermore, it does not make any difference whether
the impugned restrictions complained of in the instant case were imposed
by the Hozat district governor or by the state of emergency office attached
to the Tunceli governor’s office. In this regard, the Court points
out that under the emergency rules then in force the governor of the
state of emergency region was the hierarchical superior of the aforementioned
two authorities who exercised powers delegated to them and implemented
the decisions taken by the governor of the state-of-emergency region
(see paragraph 80 above). Taking all these elements together, it considers
that it is understandable if the applicants formed the belief that,
having received negative answers from the local authorities who exercised
emergency powers at the time, it was pointless for them to attempt to
secure satisfaction through the administrative courts (see, mutatis mutandis, Selçuk and Asker v. Turkey, judgment of 24 April 1998, Reports
1998-II, p. 908, § 70). Their feelings of upheaval and insecurity following
their displacement are also of some relevance in this connection.

105. The Court further notes that the Government
referred to cases which concerned the award of compensation by the administrative
courts to plaintiffs who had brought actions as a result of damage they
had suffered due to the lack of security in the state of emergency region
and their inability to have access to their property (see paragraphs
49 and 50 above). Undoubtedly, these decisions illustrate the real possibility
of obtaining compensation before these courts in respect of damage sustained
on account of the disturbances or acts of terrorism in the region. However,
as the Court has constantly held in similar cases, despite the extent
of village destruction or evacuation in the state of emergency region,
there appears to be no example of compensation having been awarded in
respect of allegations that villagers have been forcibly evicted from
their homes and that property has been deliberately destroyed by members
of the security forces or of prosecutions having been brought against
those forces as a result of such allegations (see, mutatis mutandis, Selçuk and Asker, cited above, § 68, and Gündem v. Turkey, judgment of 25 May 1998, Reports 1998-III, p. 1131, § 60). On that account,
the Court points out that in the cases referred to by the Government,
the administrative courts awarded compensation on the basis of the doctrine
of social risk, which is not dependent on proof of fault. Thus, under
Turkish law an administrative law action is a remedy based on the strict
liability of the State, in particular for the illegal acts of its agents,
whose identification is not, by definition, a prerequisite to bringing
an action of this nature.

106. For the Court, however, when an individual
formulates an arguable claim in respect of forced eviction and destruction
of property involving the responsibility of the State, the notion of
an “effective remedy”, in the sense of Article 13 of the Convention,
entails, in addition to the payment of compensation where appropriate,
a thorough and effective investigation capable of leading to the identification
and punishment of those responsible and including effective access by
the complainant to the investigative procedure (see Menteş and Others v. Turkey, cited above, p. 2715, § 89).
Otherwise, if an action based on the State’s strict liability were
to be considered a legal action that had to be exhausted in respect
of complaints under Article 8 of the Convention or Article 1 of Protocol
No. 1, the State’s obligation to pursue those guilty of such serious
breaches might thereby disappear.

107. As regards a civil action for redress for
damage sustained through illegal acts or patently unlawful conduct on
the part of State agents, the Court recalls that a plaintiff must, in
addition to establishing a causal link between the tort and the damage
he has sustained, identify the person believed to have committed the
tort (see Yaşa v. Turkey, judgment of 2 September 1998, Reports 1998-VI, p. 2431, § 73). In the instant case, however,
those responsible for the forced eviction of the applicants from their
village are still unknown.

108. Accordingly, the Court does not consider
that a remedy before the administrative or civil courts can be regarded
as adequate and effective in respect of the applicants’ complaints,
since it is not satisfied that a determination can be made in the course
of such proceedings concerning the allegations that villages were forcibly
evacuated by members of the security forces.

Furthermore, the Court points out that the applicants’
complaints in the instant case essentially relate to their forced displacement
and inability to return to their homes in Boydaş village, not to their
inability to recover damages from the authorities.

109. Finally, the Court considers that a complaint
to the chief public prosecutor’s office could in principle provide
redress for the kind of violations alleged by the applicants. However,
any prosecutor who receives a complaint alleging a criminal act by a
member of the security forces must decline jurisdiction and transfer
the file to the Administrative Council (see paragraph 86 above). On
that account, the Court reiterates that it has already found in a number
of cases that the investigation carried out by this body cannot be regarded
as independent since it is composed of civil servants, who are hierarchically
dependent on the governor, and an executive officer is linked to the
security forces under investigation, (see İpek v. Turkey, no. 25760/94, § 207, 17 February 2004; Yöyler v. Turkey,
no. 26973/95,§ 93, 24 July 2003; and Güleç v. Turkey, no.21593/93, § 80, Reports 1998-IV). It notes in this connection that the applicants
filed petitions with various administrative authorities complaining
about the forced evacuation of their village by the security forces
(see paragraphs 15 and 29 above). These proceedings did not result in the opening of a criminal investigation
or any inquiry into the applicants’ allegations. The Court
is therefore of the opinion that the applicants were not required to
make a further explicit request to this effect by filing a criminal
complaint with the chief public prosecutor’s office as this would
not have led to any different result.

110. In these circumstances, the Court does not
consider that the Government have discharged the burden upon them of
proving the availability to the applicants of a remedy capable of providing
redress in respect of their Convention complaints and offering reasonable
prospects of success.

It follows that the Court dismisses the Government’s
preliminary objection of non-exhaustion.

3. The alleged failure to comply with
the six-months rule

111. The Government submitted that the applicants
had failed to respect the six-month rule under Article 35 § 1 of the
Convention since the alleged incident had taken place in 1994 and the
applicants had applied to the authorities in 2001. In this regard, they
argued that the alleged incidents could not be of a continuing nature.
In the Government’s view, the only reason why the applicants had applied
to the national authorities and then failed to pursue the above-mentioned
legal remedies was to revive the time elapsed in respect of the six-months
time-limit.

112. The applicants disputed the Government’s
arguments and claimed that they had complied with the six-month rule
since the acts complained of in the present cases amounted to a continuous
situation. The applicants argued that they had made several applications
to the authorities in good faith and had requested the latter to provide
a remedy for their Convention grievances. They submitted that they had
filed their applications with the European Court since no adequate and
effective remedy had been provided by the authorities for a long time.

113. The Court reiterates that if no remedies
are available or if they are judged to be ineffective, the six-month
time-limit in principle runs from the date of the act complained of.
Special considerations could apply in exceptional cases where an applicant
first avails himself of a domestic remedy and only at a later stage
becomes aware, or should have become aware, of the circumstances which
make that remedy ineffective. In such a situation, the six-month period
might be calculated from the time when the applicant becomes aware,
or should have become aware, of these circumstances (see Hazar and Others v. Turkey (dec.), no. 62566/00, ECHR 2002-...).

114. The Court notes that between 29 November
1994 and 15 August 2001 the applicants petitioned the offices of the Prime
Minister, the State of Emergency Regional Governor, the Tunceli Governor
and the Hozat District Governor. It appears that the applicants lodged
their applications under the Convention on 3 December 2001 after beginning
to doubt that an effective investigation would be initiated into their
allegations of forced eviction and that a remedy would be provided to
them in respect of their complaints. The Court further points out that
it was not until 22 July 2003 that the applicants were told that there
was no obstacle to their return to their homes in Boydaş village (see
paragraph 37 above). In these circumstances, the Court considers that
the six-month time-limit within the meaning of Article 35 § 1 of the
Convention started to run on 22 July 2003 at the earliest and, consequently,
that the applications were brought prior to that date, i.e. 3 December
2001.

In the light of the foregoing, the Court dismisses
the Government’s objection of failure to comply with the six-month
rule.

B. Compliance with other admissibility criteria

1. The applicant’s complaints under
Articles 8 and 13 of the Convention and Article 1 of Protocol No. 1

115. The applicants contended under Article 8
of the Convention that their right to respect for their family life
and home had been violated as they had been forcibly displaced from
their village and had been prevented from returning. They maintained
under Article 1 of Protocol No. 1 that they had lost the possibility
of using and enjoying their property on account of the restrictions
imposed by the authorities on their return to their village. They further
complained under Article 13 of the Convention that they had no effective
remedy for their various Convention grievances.

116. The Government denied the applicants’ allegations
of forced eviction by the security forces. In their opinion, the applicants
had left their village because of the terrorist incidents in the region.
They claimed that the authorities had been taking necessary measures
with a view to redressing the damage sustained by the applicants on
account of their inability to return to their village.

117. The Court considers, in the light of the
parties’ submissions, that these complaints raise complex issues of
law and fact under the Convention, the determination of which should
depend on an examination of their merits. The Court concludes, therefore,
that these complaints are not manifestly ill-founded within the meaning
of Article 35 § 3 of the Convention. No other grounds for declaring
them inadmissible have been established.

2.The applicants’ complaints under Article 1 of the Convention

118. The applicants alleged under Article 1 of
the Convention that the respondent State had failed to secure to those
within its jurisdiction rights and freedoms set out in the Convention
and its protocols.

119. The Government did not comment on this point.

120. The Court reiterates that Article 1 contains
an entirely general obligation; it should not be seen as a provision
which can be the subject of a separate breach, even if invoked at the
same time and in conjunction with other Articles (see Danini v. Italy, no. 22998/93, Commission decision of 14 October
1996, Decisions and Reports (DR) 87-B, p. 24). Thus, the Court does
not consider it necessary to examine this aspect of the applications
separately.

3. The applicants’ complaints under
Article 6 of the Convention

121. The applicants complained under Article 6
of the Convention that they had been denied access to court to challenge
the decisions of the administrative authorities.

122. The Government rejected the applicants’
allegations under this head and claimed that the applicants had failed
to avail themselves of the remedy under administrative law.

123. The Court notes that the applicants did not
bring an action in the administrative courts for the reasons given above
(see paragraphs 104-106 above). In the Court’s view, however, the
applicants’ complaint under this head mainly pertains to the lack
of an effective investigation into the forced evacuation of their village
by the security forces and to their inability to have access to their
possessions. It will therefore examine this complaint from the standpoint
of Article 13, which imposes a more general obligation on States to
provide an effective remedy in respect of alleged violations of the
Convention (see Selçuk and Asker, and Yöyler, cited above, § 92 and § 73 respectively).

4. The applicants’ complaints under
Article 7 of the Convention

124. The applicants alleged that the authorities’
refusal to allow them to return to their village and to have access
to their property amounted to a violation of Article 7 of the Convention.

125. The Government did not respond to the allegations
under this head.

126. The Court points out that Article 7 § 1
of the Convention embodies the principle that only the law can define
a crime and prescribe a penalty and prohibits the retrospective application
of the criminal law (see Kokkinakis v. Greece, judgment of 25 May 1993, Series A no.
260, p. 22, § 52). It notes that the alleged eviction of the applicants
from their homes and the restrictions on their return to their village
did not concern “a criminal charge” against them within the meaning
of Article 6 § 1 of the Convention. It follows that the events and the
measures complained of in the instant case did not concern “a criminal
offence” for the purpose of Article 7 either.

127. This part of the application is therefore
incompatible ratione materiae with the provisions of the Convention within
the meaning of Article 35 § 3, and it should be rejected under Article
35 § 4 thereof.

5. The applicants’ complaints under
Article 14 of the Convention

128. The applicants alleged under Article 14,
in conjunction with Articles 6, 8 and 13 of the Convention and Article
1 of Protocol No. 1, that they had been discriminated against on the
basis of their birthplace.

129. The Government did not address these issues
beyond denying the factual basis of the substantive complaints.

130. The Court has examined the applicant’s
allegations in the light of the evidence submitted to it, but considers
them unsubstantiated.

It follows that this complaint is manifestly
ill-founded and must be rejected in accordance with Article 35 § 3
of the Convention.

6. The applicants’ complaints under
Article 17 of the Convention

131. The applicants maintained under Article 17
of the Convention that the respondent State had applied restrictions
to their rights in violation of the Convention, particularly in the
state of emergency region.

132. The Government did not comment on these complaints.

133. The Court notes that the applicants have
not substantiated their complaints under this provision. It follows
that this complaint is manifestly ill-founded and must be rejected in
accordance with Article 35 § 3 of the Convention.

II. ALLEGED VIOLATION OF ARTICLE
1 OF PROTOCOL NO. 1

134. The applicants alleged that their forced
eviction from their village by the security forces and the refusal of
the authorities to allow them to return to their homes and land had
amounted to a breach of Article 1 of Protocol No. 1, which provides:

“Every natural or legal person is entitled
to the peaceful enjoyment of his possessions. No one shall be deprived
of his possessions except in the public interest and subject to the
conditions provided for by law and by the general principles of international
law.

The preceding provisions shall not, however,
in any way impair the right of a State to enforce such laws as it deems
necessary to control the use of property in accordance with the general
interest or to secure the payment of taxes or other contributions or
penalties.”

A. Whether there was a “possession”

135. The Government averred that the applicants
Abdullah Doğan, Cemal Doğan, Ali Murat Doğan, Hıdır Balık, İhsan
Balık, Kazım Balık, Mehmet Doğan, Hüseyin Doğan and Ali Rıza
Doğan did not have “possessions” within the meaning of Article
1 of Protocol No. 1 since they had failed to submit title deeds attesting
that they had owned property in Boydaş village. Consequently, these
nine applicants could not claim to be victims of a violation of a property
right that had not been established.

136. The Government submitted that for there to
be an infringement of a property within the meaning of Article 1 of
Protocol No. 1, an applicant must demonstrate that he had a title to
that property. With reference to the Court’s jurisprudence on the
subject, they maintained that the description and identification of
property rights were matters for the national legal system and that
it was incumbent on an applicant to establish the precise nature of
the right under domestic law and his entitlement to enjoy it. The Government
noted in this connection that under Turkish law all transactions related
to immovable property and all proof concerning ownership had to be based
on records of land registry. In cases where the immovable property,
such as land, was not recorded at the registry, proof of ownership had
to be established in accordance with the rules set out in the Civil
Code. Further, where no land survey had been conducted, a decision of
a judge was necessary to provide proof of ownership. Finally, the Government
stressed that the statements of the mayor of Boydaş village (see paragraphs
23 and 24 above) had no evidential value as such unless they had been
admitted as evidence by a national judge in a case which concerned the
ownership of land or the ownership of movable property such as livestock.

137. The applicants disputed the Government’s
arguments and contended that, according to the Court’s case-law, the
concept of “possessions” comprised, in addition to all forms of
corporeal moveable and immoveable property, “rights” and “interests”
which do not physically exist and all forms of assets and financial
as well as economic resources included in the persons’ property. They
noted that in the rural area where they lived the patriarchal family
system prevailed, wherein adults married, built houses on their fathers’
land and made use of their fathers’ property as a natural requirement
of the social system. In that connection, the applicants argued that
“property rights” should not be regarded as exclusively covering
property which was registered under a personal title, but should include
all the economic resources jointly enjoyed by all the villagers. The
applicants further asserted that they all had separate families and
economic activities in the village even though they had used their fathers’
property. Relying on the provisions of the Code of Civil Procedure,
they also claimed that the statements given by the mayor of Boydaş
village (see paragraphs 23 and 24 above) should be taken into account
with a view to proving that they had been using their ascendants’
registered and unregistered property in accordance with the local traditions
and that they had been earning their living from stockbreeding and forestry.

138. The Court reiterates that Article 1 of Protocol
No. 1 in substance guarantees the right of property (see Marckx v. Belgium, judgment of 13 June 1979, Series A no. 31,
pp. 27-28, § 63). However, the notion “possessions” (in French: biens)
in Article 1 has an autonomous meaning which is certainly not limited
to ownership of physical goods: certain other rights and interests constituting
assets can also be regarded as “property rights”, and thus as “possessions”
for the purposes of this provision (see Gasus Dosier- und Fördertechnik GmbH v. The Netherlands, judgment
of 23 February 1995, Series A no. 306-B, p. 46, § 53, and Matos e Silva, Lda., and Others v. Portugal, judgment of 16 September
1996, Reports
1996-IV, p. 1111, § 75).

139. The Court notes that it is not required to
decide whether or not in the absence of title deeds the applicants have
rights of property under domestic law. The question which arises under
this head is whether the overall economic activities carried out by
the applicants constituted “possessions” coming within the scope
of the protection afforded by Article 1 of Protocol No. 1. In this regard,
the Court notes that it is undisputed that the applicants all lived
in Boydaş village until 1994. Although they did not have registered
property, they either had their own houses constructed on the lands
of their ascendants or lived in the houses owned by their fathers and
cultivated the land belonging to the latter. The Court further notes
that the applicants had unchallenged rights over the common lands in
the village, such as the pasture, grazing and the forest land, and that
they earned their living from stockbreeding and tree-felling. Accordingly,
in the Court’s opinion, all these economic resources and the revenue
that the applicants derived from them may qualify as “possessions”
for the purposes of Article 1.

B. Whether there was an interference

140. The applicants argued that it was not in
doubt that there had been an interference with their right to peaceful
enjoyment of their possessions. They were forcibly evicted from their
homes and land by the security forces and restrictions were imposed
by the authorities on their return to their village. As a result of
continuous denial of access to the village they were effectively deprived
of their revenue and forced to live in poor conditions in other regions
of the country.

141. The Government denied that the applicants
had been compelled to evacuate their village by the security forces.
They claimed that the applicants had left their village on account of
the disturbances in the region and intimidation by the PKK. They admitted
however that a number of settlements had been evacuated by the relevant
authorities to ensure the safety of the population in the region. The
Government further submitted that the applicants had no genuine interest
in going back to their village since in its present state Boydaş village
was not suitable for accommodation and offered very poor economic conditions
to sustain life. Nevertheless, with reference to the Ministry of Interior
Gendarmerie General Command’s letter of 22 July 2003, the Government
pointed out that there remained no obstacle to the applicants’ return
to Boydaş village (see paragraph 37 above).

142. In the present case, the Court is required
to have regard to the situation which existed in the state of emergency
region of Turkey at the time of the events complained of by the applicants,
characterised by violent confrontations between the security forces
and members of the PKK. It notes that this two-fold violence resulting
from the acts of the two parties to the conflict forced many people
to flee their homes (see paragraphs 56 and 62 above). Furthermore, and
as admitted by the Government, the authorities have evicted the inhabitants
of a number of settlements to ensure the safety of the population in
the region (see paragraph 141 above). The Court has also found in numerous
similar cases that security forces deliberately destroyed the homes
and property of the respective applicants, depriving them of their livelihoods
and forcing them to leave their villages in the state of emergency region
of Turkey (see, among many others, Akdivar and Others, Selçuk and Asker, Menteş and Others, Yöyler,İpek, judgments cited above; Bilgin v. Turkey, no. 23819/94, 16 November 2000, and Dulaş v. Turkey,
no. 25801/94, 30 January 2001).

143. Turning to the particular circumstances of
the instant case, the Court observes that it is unable to determine
the exact cause of the displacement of the applicants because of the
lack of sufficient evidence in its possession and the lack of an independent
investigation into the alleged events. On that account, for the purposes
of the instant case it must confine its consideration to the examination
of the applicants’ complaints concerning the denial of access to their
possessions since 1994. In this connection, the Court notes that despite
the applicants’ persistent demands, the authorities refused any access
to Boydaş village until 22 July 2003 on the ground of terrorist incidents
in and around the village (see paragraphs 15, 17 and 18 above). These
disputed measures deprived the applicants of all resources from which
they derived their living. Moreover, they also affected the very substance
of ownership in respect of six of the applicants in that they could
not use and dispose of their property for almost nine years and ten
months. The result of these contested measures has been that since October
1994 their right over the possessions has become precarious.

In conclusion, the denial of access to Boydaş
village must be regarded as an interference with the applicants’ right
to the peaceful enjoyment of their possessions (see Loizidou v. Turkey, judgment of 18 December 1996, Reports 1996-VI, p. 2216, § 63).

C. Whether the interference was justified

144. It remains to be determined whether or not
this interference contravenes Article 1.

1. The applicable rule

145. The Court reiterates that Article 1 of Protocol
No. 1 comprises three distinct rules. The first rule, which is set out
in the first sentence of the first paragraph, is of a general nature
and enunciates the principle of the peaceful enjoyment of property.
The second rule, contained in the second sentence of the first paragraph,
covers deprivation of possessions and subjects it to certain conditions.
The third rule, stated in the second paragraph, recognises that the
Contracting States are entitled, amongst other things, to control the
use of property in accordance with the general interest, by enforcing
such laws as they deem necessary for the purpose. However, the rules
are not “distinct” in the sense of being unconnected. The second
and third rules are concerned with particular instances of interference
with the right to peaceful enjoyment of property and should therefore
be construed in the light of the general principle enunciated in the
first rule (see, inter alia, James and Others v. the United Kingdom, judgment of 21 February
1986, Series A no. 98, pp. 29-30, § 37, which partly reiterates the
terms of the Court’s reasoning in Sporrong and Lönnrothv. Sweden, judgment of 23 September 1982, Series A no. 52,
p. 24, § 61; see also TheHoly Monasteries v. Greece, judgment of 9 December 1994, Series
A no. 301-A, p. 31, § 56; Iatridis v. Greece [GC], no. 31107/96, § 55, ECHR 1999-II; Beyeler v. Italy
[GC], no. 33202/96, § 106, ECHR 2000-I).

146. The Court notes that the parties did not
comment on the rule applicable to the case. It points out that the measures
in question did not involve a deprivation of property within the meaning
of the second sentence of the first paragraph of Article 1 because the
applicants have remained the legal owner or possessor of the lands in
Boydaş. The measures did not amount to control of the use of property
either since they did not pursue such an aim. The Court considers therefore
that the situation of which the applicants complain falls to be dealt
with under the first sentence of the first paragraph of Article 1 since
the impugned measures undoubtedly restricted the applicants’ rights
to use and dispose of their possessions (Cyprus v. Turkey ([GC], no. 25781/94, § 187, ECHR 2001-IV).

2. Lawfulness and purpose of the interference

147. The applicants asserted that the impugned
measures had a legal basis in domestic law in that the governor of the
state-of-emergency region could order the permanent or temporary evacuation
of villages and impose residence restrictions pursuant to Article 4
(h) of Decree no. 285 and Article 1 (b) of Decree no. 430 in force at
the relevant time (see paragraph 82 above). They argued however that
the state-of-emergency governor’s office had employed illegal methods
to depopulate the region rather than relying on the aforementioned provision.
In their opinion, the motive behind this choice was to blame the illegal
organisations, such as the PKK and the TİKKO (Workers and Peasants’ Independence Army of Turkey), for village
evacuations, to avoid the economic burden of re-housing the population
and to grant impunity to the security forces for their illegal acts.

148. The Government disputed the applicants’
assertions and maintained that the refusal of access to Boydaş village
had aimed at protecting the lives of the applicants on account of the
insecurity of the region. In their opinion, had the applicants been
evicted from their village by the security forces as alleged, this must
have been carried out in pursuance of the State’s duty to fulfil its
obligation under Article 2 of the Convention, which overrode its undertakings
under Article 1 of Protocol No. 1.

149. Notwithstanding its doubts as to the lawfulness
of the impugned interference, the Court notes the security motives invoked
by the Government in this context and for the purposes of the present
case would refrain from ruling that these aims cannot be regarded as
legitimate “in accordance with the general interest” for the purposes
of the second paragraph of Article 1. It thus leaves the question regarding
the lawfulness of the interference open, as in the present case it is
more essential to decide on the proportionality of the interference
in question.

3. Proportionality of the interference

150. The applicants maintained that, as a result
of their displacement and denial of access to their possessions, they
had been forced to live in very poor conditions due to the lack of employment,
housing, health care and a sanitary environment. They contended that,
in the absence of economic and social measures to remedy their living
conditions, the interference complained of could not be described as
proportionate to the aim pursued.

151. The Government claimed that they had taken
all necessary measures with a view to tackling the problems of the internally
displaced persons, including the applicants. They asserted that the
“return to village and rehabilitation project” had been developed
by the authorities to remedy the problems of those who had had to leave
their homes on account of the terrorist incidents in the region (see
paragraphs 45-48 above). The aim of this project was to ensure the voluntary
return of the displaced population. Thus, its implementation had been
subjected to the strict control of Parliament (see paragraphs 39-42
above). The Government had also obtained the support of several international
agencies to assist in the successful implementation of this project
(see paragraph 44 above). Despite budgetary restraints and serious economic
difficulties, the Government had spent approximately sixty million euros
within the context of this project. An important amount of this money
had been used for improvement of the infrastructure in the region. The
progress achieved so far had been positive and encouraging given the
fact that 94,000 persons, which was approximately 25% of the total number
of displaced persons, had already returned to their settlement units
between June 2000 and December 2003.

152. The Government further referred to draft
legislation for compensation of damage caused by terrorist violence
or as a result of measures taken by the authorities against terrorism.
They explained that, when enacted, this law would provide a remedy whereby
the internally displaced persons could claim compensation for the damage
they had sustained in the course of the struggle against terrorism.
Against this background, the Government concluded that the measures
taken by the authorities had been proportionate to the aims pursued.

153. For the purposes of the first sentence of
the first paragraph, the Court must determine whether a fair balance
was struck between the demands of the general interest of the community
and the requirements of the protection of the individual’s fundamental
rights (see Sporrong and Lönnroth, cited above, § 69). The Court recognises
that the interference complained of in the instant case did not lack
a basis. As noted above, armed clashes, generalised violence and human
rights violations, specifically within the context of the PKK insurgency,
compelled the authorities to take extraordinary measures to maintain
security in the state of emergency region. These measures involved,
among others, the restriction of access to several villages, including
Boydaş, as well as evacuation of some villages on the ground of the
lack of security. However, it observes that in the circumstances of
the case the refusal of access to Boydaş had serious and harmful effects
that have hindered the applicants’ right to enjoyment of their possessions
for almost ten years, during which time they have been living in other
areas of the country in conditions of extreme poverty, with inadequate
heating, sanitation and infrastructure (see paragraphs 14, 57 and 63
above). Their situation was compounded by a lack of financial assets,
having received no compensation for deprivation of their possessions,
and the need to seek employment and shelter in overcrowded cities and
towns, where unemployment levels and housing facilities have been described
as disastrous (see paragraph 63 above).

154. While the Court acknowledges the Government’s
efforts to remedy the situation of the internally displaced persons
generally, for the purposes of the present case it considers them inadequate
and ineffective. In this connection, it points out that the return to
village and rehabilitation project referred to by the Government has
not been converted into practical steps to facilitate the return of
the applicants to their village. According to the visual records of
29 December 2003, Boydaş village seems to be in ruins and without any
infrastructure (see paragraph 38 above). Besides the failure of the
authorities to facilitate return to Boydaş, the applicants have not
been provided with alternative housing or employment. Furthermore, apart
from the aid given to Mr Kazım Balık and Mr Müslüm Yılmaz by the
Social Aid and Solidarity Fund, which in the Court’s opinion is insufficient
to live on, the applicants have not been supplied with any funding which
would ensure an adequate standard of living or a sustainable return
process. For the Court, however, the authorities have the primary duty
and responsibility to establish conditions, as well as provide the means,
which allow the applicants to return voluntarily, in safety and with
dignity, to their homes or places of habitual residence, or to resettle
voluntarily in another part of the country (see in this respect Principles
18 and 28 of the United Nations Guiding Principles on Internal Displacement,
E/CN.4/1998/53/Add.2, dated 11 February 1998). Moreover, as regards
the draft legislation on compensation for damage occurred as a result
of the acts of terrorism or of measures taken against terrorism, the
Court observes that this law is not yet in force and, accordingly, does
not provide any remedy for the applicants’ grievances under this heading.

155. Having regard to the foregoing, the Court
considers that the applicants have had to bear an individual and excessive
burden which has upset the fair balance which should be struck between
the requirements of the general interest and the protection of the right
to the peaceful enjoyment of one’s possessions.

156. In view of these considerations, the Court
dismisses the Government’s preliminary objection with respect to nine
of the applicants who have not presented title deeds and holds that
there has been a violation of Article 1 of Protocol No. 1.

III. ALLEGED VIOLATION OF ARTICLE
8 OF THE CONVENTION

157. The applicants, referring to their expulsion
from their village and their inability to return thereto, maintained
that there had been a breach of Article 8 of the Convention, which reads:

“1. Everyone has the right to respect for his
private and family life, his home and his correspondence.

2. There shall be no interference by a public
authority with the exercise of this right except such as is in accordance
with the law and is necessary in a democratic society in the interests
of national security, public safety or the economic well-being of the
country, for the prevention of disorder or crime, for the protection
of health or morals, or for the protection of the rights and freedoms
of others.”

158. The Government denied that there had been
any violation of this provision, on the same grounds as those advanced
in connection with Article 1 of Protocol No. 1.

159. The Court is of the opinion that there can
be no doubt that the refusal of access to the applicants’ homes and
livelihood, in addition to giving rise to a violation of Article 1 of
Protocol No. 1, constitutes at the same time a serious and unjustified
interference with the right to respect for family lives and homes.

160. Accordingly, the Court concludes that there
has been a violation of Article 8 of the Convention.

IV. ALLEGED VIOLATION OF ARTICLE
13 OF THE CONVENTION

161. The applicants alleged that the failure of
the authorities to conduct an effective investigation into their forced
eviction from their village and lack of any remedy by which to challenge
the refusal of access to their possessions gave rise to a breach of
Article 13 of the Convention, which provides:

“Everyone whose rights and freedoms as set
forth in [the] Convention are violated shall have an effective remedy
before a national authority notwithstanding that the violation has been
committed by persons acting in an official capacity.”

162. The Government disputed the above allegations,
arguing that there were administrative, civil and criminal remedies
(see paragraphs 94-97 above) of which the applicants had failed to avail
themselves.

163. The Court points out that it has already
found that the denial of access to the applicants’ homes and possessions
was in violation of Article 8 and Article 1 of Protocol No. 1. The applicants’
complaints in this regard are therefore “arguable” for the purposes
of Article 13 (see Yöyler and Dulaş, judgments cited above, §§ 89 and 67 respectively).

164. The Court observes that the complaints under
this head reflect the same or similar elements as those issues already
dealt with in the context of the objection concerning the exhaustion
of domestic remedies. In that connection, the Court reiterates its finding
that, the Government have not discharged the burden upon them of proving
the availability to the applicants of a remedy capable of providing
redress in respect of their Convention complaints and offering reasonable
prospects of success (see paragraph 110 above). For the same reasons,
the Court concludes that there was no available effective remedy in
respect of the denial of access to the applicants’ homes and possessions
in Boydaş village.

Accordingly, there has been a violation of Article
13 of the Convention.

V. APPLICATION OF ARTICLE 41 OF THE
CONVENTION

165. Article 41 of the Convention provides:

“If the Court finds that there has been a violation
of the Convention or the Protocols thereto, and if the internal law
of the High Contracting Party concerned allows only partial reparation
to be made, the Court shall, if necessary, afford just satisfaction
to the injured party.”

166. The applicants claimed a total of TUR 1,538,240,000,0002
for pecuniary damage, equivalent to EUR 854,5771. They each claimed EUR 15,000 for non-pecuniary
damage and an overall amount of EUR 21,150 for costs and expenses.

167. The Government have not commented on these
claims.

168. The Court considers that the question of
the application of Article 41 is not ready for decision. Accordingly,
it reserves that question and, in determining the further procedure,
will have due regard to the possibility of agreement being reached between
the Government and the applicants.

FOR THESE REASONS, THE COURT UNANIMOUSLY

1. Joinsto the merits the Government’s preliminary objection to the
“victim status” of nine of the applicants who failed to present
title deeds in respect of their complaints under Article 1 of Protocol
No. 1 and dismisses it;

4. Declares the applicants’ complaints under Articles 8 and
13 of the Convention and Article 1 of Protocol No. 1 admissible and the
remainder of their applications inadmissible;

5. Holds that there has been a violation of Article 1 of Protocol
No. 1;

6. Holds that there has been a violation of Article 8 of the Convention;

7. Holds that there has been a violation of Article 13 of the Convention;

8. Holds that the question of the application of Article 41 of
the Convention is not ready for decision;

accordingly,

(a) reserves the said question in whole;

(b) invites the Government and the applicants to submit, within
six months from the date on which the judgment becomes final according
to Article 44 § 2 of the Convention, their written observations on the
matter and, in particular, to notify the Court of any agreement that
they may reach;

(c) reserves the further procedure and delegates to the President of the Chamber the power to fix
the same if need be.

Done in English, and delivered at a
public hearing in the Human Rights Building, Strasbourg, on 29 June
2004.

Vincent Berger Georg Ress
Registrar President

1
Rectified on 18 November 2004. The name of Müslüm Yılmaz read Müslüm
Yıldız in the former version of the judgment.

2
Rectified on 18 November 2004. The total amount claimed by the applicants
read TUR 50,000,080,000,000 (EUR 30,946,497.20) in the former version
of the judgment.